As subscribers to the GenderBlog newsletter will know – yesterday was the final day of Morrison v Belfast Film Festival at the Belfast Employment Tribunal. Sara Morrison has made a claim against her former employer, alleging discrimination for her gender-critical/sex-realist beliefs and constructive dismissal.
In yesterday’s newsletter I laid out the closing oral submissions from both sides. This blog post records excerpts from the written closing submissions from the Belfast Film Festival. Click here for the written closing submissions from the Sara Morrison’s legal team. Both are really interesting for what they say about the case and the context they present. The Belfast Film Festival submission has lots of useful case law. Sara Morrison’s submission has an excellent timeline.
If you are new to this story, you can read:
– an interview I did with the Claimant, Sara Morrison.
– a transcript of the speech made by Sara at a Let Women Speak event on 16 April 2023 (day zero for this claim)
– a recap of week one’s evidence
– a full telling of the Recusal Drama on Friday 14 November
The following is taken from the Respondent’s written closing document, which was submitted to court at 9am yesterday. It has been lightly edited (mainly formatted) to aid readability. It is therefore not an exact word-for-word facsimile of the document submitted to the tribunal by Sean Doherty (Belfast Film Festival’s counsel). All transcription and editing errors are mine.
The Respondent’s case
Introduction
The present case is not about the correctness or otherwise of gender-critical or sex-realist views. It is not about whether transwoman should be allowed to compete in female sports. These are matters the Tribunal does not have to make a determination upon.
Despite the clear desire of the Claimant to make the case about such matters, it is submitted that this is a relatively straightforward case and relates to whether or not an employer is entitled to investigate in circumstances where it is receiving complaints relating to an employee. That is the central allegation of discrimination. There are of course other particulars of discrimination which the Tribunal will have to engage with. However, the Respondent’s position is that it would have investigate any employee, who had given a public speech expressing any political opinion in the same circumstances as the Claimant, if that lead to complaints and potential reputational damage. That is a simple proposition that discloses no less favourable treatment. Put another way, what else was the Respodennt supposed to do?
In respect of the claim of constructive dismissal, it is again submitted this is a relatively straightforward claim. The Claimant resigned after receiving the grievance appeal outcome. The evidence of Mr Owens, who Ms McGivern stated “took the lead” in respect of the appeal, has been agreed. His evidence must be accepted by the Tribunal. The consequence of this, as will be set out below, is that there is nothing about the act, the receipt of the appeal outcome, that caused the Claimant to resign that can be said to add to anything that came before. There is no last straw. The claim of constructive dismissal should therefore be dismissed.
The following submissions will set out the relevant legal principles before turning to the evidence heard.
Fair Employment And Treatment (Northern Ireland) Order 1998
The Tribunal will be well aware that the Fair Employment and Treatment (Northern Ireland) Order 1998 (“FETO”) makes it unlawful to discriminate against employees on the basis of their political opinion.
The prohibition of discrimination on grounds of political opinion is set out within Article 3 of FETO. Article 3(2)(a) states:
“A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if –
(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons;”
The Meaning Of Political Opinion
Article 2 of FETO contains general interpretative provisions; it does not however have a definitive definition of political opinion but it is nevertheless relevant. It states :
“(3) In this Order references to a person’s … political opinion include references to –
(a) his supposed … political opinion; and
(b) the absence or supposed absence of any, or any particular… political opinion.
(4) In this Order any reference to a person’s political opinion does not include an opinion which consists of or includes approval or acceptance of the use of violence for political ends connected with the affairs of Northern Ireland, including the use of violence for the purpose of putting the public or any section of the public in fear.“
Further elucidation of what is encompassed by the term “political opinion” can be found within a number of decisions. It is therefore helpful to set out some extracts from those decisions.
“…the words “on the ground of religious belief or political opinion” are capable in their own ordinary meaning of covering any cause or reason for an action based on religious belief or political opinion, whether it is the belief or opinion of the person affected by the action or of the person doing the act or of another person.”
“There can be no difficulty as to the meaning of the word ‘opinion’ and none as to the word ’political’. When they come together in the phrase ‘political opinion’ it means, in broad terms, and without attempting any exhaustive definition, an opinion relating to the policy of government and matters touching the government of the state. The word ‘political’ is defined in the Shorter Oxford Dictionary as:
‘Of, belonging or pertaining to the state, its government and policy; public, civil; of or pertaining to the science or art of government.’
It seems to me clear that a person who holds an opinion on matters relating to any of the elements of this definition, holds a political opinion.”
In the case of Gill v Northern Ireland Council for Ethnic Minorities [2001] NIJB 289 Carswell LCJ also commented open the issue of what constitutes a political opinion. He stated at 311J:
“It seems to us that the type of political opinion envisaged by the fair employment legislation is that which relates to one of the opposing ways of conducting the government of the state, which may be that of Northern Ireland but is not confined to that political entity. The object of the legislation is to prevent discrimination against a person which may stem from the association of that person with a political party, philosophy or ideology and which may predispose the discriminator against him. For this reason we consider that the type of political opinion in question must be one relating to the conduct of the government of the state or matters of public policy.”
It is also submitted that a view expressed as to how ones political opinion may be achieved, for example by voting or not voting for a certain party, also amounts to a political opinion within the scope of FETO. In McConkey & Ors -v- The Simon Community [2009] UKHL 24 Lord Roger of Earlsferry, at paragraph 19, approved the dicta of Girvan LJ in Ryder v Northern Ireland Policing Board [2008] NIJB 252 when he stated at 260a–b, that, ‘depending on the facts, an opinion on methods of achieving certain results may qualify as being truly a political opinion.’
The term political opinion also includes a person’s supposed, perceived or assumed, political opinion. The point was emphasised in the case of Gill by Girvan LJ who stated at page 258 paragraph 22:
“Discrimination, whether it is on grounds of gender, sexual orientation, religion, race or political opinion, is something which may be subtle, insidious or hidden … What is central to the enquiry is the working and thought processes of the alleged discriminator, what is to be examined is whether that person acted in the way he did on grounds of political opinion. That may be the opinion of the respondent discriminator or the opinion of the claimant or it may be based on the Respondent’s perception of the Claimants political opinion or lack of them….”
The protection against discrimination on the fround of political opinion is different to the protection afforded by the Equality Act which protects religion or belief, belief meaning any religious or philosophical belief. So, whilst the Tribunal needs to exercise caution when considering authorities relating to the protection of beliefs by the Equality Act, however assistance can be derived from such authorities.
In Page (appellant) v NHS Trust Development Authority (respondent) [2021] IRLR 391 involved a Claimant who held views relating to same sex couple adoption. At paragraph 68 Underhill LJ stated:
“In a direct discrimination claim the essential question is whether the act complained of was done because of the protected characteristic, or, to put the same thing another way, whether the protected characteristic was the reason for it: see para [29] above. It is thus necessary in every case properly to characterise the putative discriminator’s reason for acting. In the context of the protected characteristic of religion or belief the EAT case-law has recognised a distinction between (1) the case where the reason is the fact that the claimant holds and/or manifests the protected belief, and (2) the case where the reason is that the claimant had manifested that belief in some particular way to which objection could justifiably be taken. In the latter case it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the act complained of. Of course, if the consequences are not such as to justify the act complained of, they cannot sensibly be treated as separate from an objection to the belief itself.
“The distinction is apparent from three decisions in cases where an employee was disciplined for inappropriate Christian proselytisation at work – Chondol v Liverpool City Council (2009) UKEAT 0298/08, [2009] All ER (D) 155 (Feb), Grace v Places for Children (2013) UKEAT 0217/13 and Wasteney v East London NHS Foundation Trust (2016) UKEAT 0157/15, [2016] IRLR 388, [2016] ICR 643. In essence, the reasoning in all three cases is that the reason why the employer disciplined the claimant was not that they held or expressed their Christian beliefs but that they had manifested them inappropriately. In Wasteney HH Judge Eady QC referred to the distinction as being between the manifestation of the religion or belief and the ‘inappropriate manner’ of its manifestation: see para 55 of her judgment. That is an acceptable shorthand, as long as it is understood that the word ‘manner’ is not limited to things like intemperate or offensive language.”
In the case of Higgs v Farmor’s School [2025] EWCA Civ 109 is likely to assist the Tribunal. That case raised questions as to the approach to be taken to the determination of claims of direct discrimination because of, or harassment related to, religion or belief. More broadly, the proceedings raised issues relating to the manifestation of a belief and the exercise of free speech.
The employer in that case was a school. It had employed a Claimant in a role where she claimant would at times work alongside pupils who had lesbian, gay, bisexual and/or transgender (‘LGBT’) characteristics, or were questioning whether they did so. The employer received a complaint about a Facebook post the claimant had made. That post included the passage “children will be taught that all relationships are equally valid and “normal”, so that same sex marriage is exactly the same as traditional marriage, and that gender is a matter of choice, not biology, so that it’s up to them what sex they are.”
The school responded to the complainant on 29 October 2018, saying it would be helpful to forward screenshots of ‘any similarly offensive posts’. When first asked about the post the Claimant pointed out she had said nothing about her employer. She was suspended, investigated and dismissed for gross misconduct.
At paragraph 175 of the decision Underhill LJ provided a useful summary of his judgement as follows:
“(1) The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party with whom it wishes to protect its reputation, objects will constitute unlawful direct discrimination within the meaning of the Equality Act.
(2) However, if the dismissal is motivated not simply by the expression of the belief itself (or third parties’ reaction to it) but by something objectionable in the way in which it was expressed, determined objectively, then the effect of the decision in Page v NHS Trust Development Authority is that the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature – in short, that it was objectively justified: see para. 74 above.
(3) Although point (2) modifies the usual approach under the Equality Act so as to conform with that required by the European Convention of Human Rights, that “blending” is jurisprudentially legitimate: see paras. 81–97.
(4) In the present case the Claimant, who was employed in a secondary school, had posted messages, mostly quoted from other sources, objecting to Government policy on sex education in primary schools because of its promotion of “gender fluidity” and its equation of same-sex marriage with marriage between a man and a woman. It was not in dispute, following the earlier decision of the EAT in Forstater v CGD Europe, that the Claimant’s beliefs that gender is binary and that same-sex marriage cannot be equated with marriage between a man and a woman are protected by the Equality Act.
(5) The school sought to justify her dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and “the LGBT crowd” which were liable to damage the school’s reputation in the community: the posts had been reported by one parent and might be seen by others. However, neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils: see paras. 159–163 above.“
Whether Treatment Is On The Ground Of Political Opinion
A person discriminates against another directly “on ground of” political opinion where the person’s political opinion is the reason for the less favourable treatment. It need not be the only reason for the treatment; it is enough that the political opinion is a material factor in the decision that is taken.
The case of Owen & Briggs v James [1982] ICR 618, dealt with a claim of discrimination under the Race Relations Act 1976 which prohibited discrimination “on racial grounds”. At page 623E it was stated:
“This seems to be a contention that there can be no discrimination under section 4 unless the racial factor is the sole reason for not employing the applicant for employment. I reject any such proposition as being quite unwarranted by the language of the Act.”
The question of whether treatment is on the ground of a protected characteristic was further considered in the case of Nagarajan v London Regional Transport [2000] 1 AC 501, a case that dealt with a claim of race discrimination, Lord Nicholls at 511A-D:
“This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.
The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred. For the purposes of direct discrimination under section 1(1)(a), as distinct from indirect discrimination under section 1(1)(b), the reason why the alleged discriminator acted on racial grounds is irrelevant. Racial discrimination is not negatived by the discriminator’s motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant’s job application was racial, it matters not that his intention may have been benign. For instance, he may have believed that the applicant would not fit in, or that other employees might make the applicant’s life a misery. If racial grounds were the reason for the less favourable treatment, direct discrimination under section l(l)(o) is established. “
Lord Nicholls went on at 512H to 513 to state:
“Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”
The issue was further examined in the case of R (On the application of E) v Governing Body of JFS and others [2010] 2 AC 728. Lord Philips at paragraph 13 stated:
“In the phrase “grounds for discrimination”, the word “grounds” is ambiguous. It can mean the motive for taking the decision or the factual criteria applied by the discriminator in reaching his decision. In the context of the 1976 Act “grounds” has the latter meaning. In deciding what were the grounds for discrimination it is necessary to address simply the question of the factual criteria that determined the decision made by the discriminator. This approach has been well established by high authority.
In R v Birmingham City Council, Ex p Equal Opportunities Commission [1989] AC 1155 the entry criteria applied by the council for admission to selective single-sex grammar schools was in issue. More places were available in boys schools than in girls schools. The result was that girls had to obtain higher marks in the entry examination than boys. The motive for the disparity was, no doubt, that this was necessary to ensure that entry to the schools was determined on merit. The House of Lords held, none the less, that the disparity constituted unlawful discrimination contrary to the Sex Discrimination Act 1975 which prohibited discrimination against a woman “on the ground of her sex”. Lord Goff of Chieveley, with whom the other members of the Committee agreed, said at p 1194:
“There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate, though it may be relevant so far as remedies are concerned (see section 66(3) of the 1975 Act), is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex. Indeed, as Mr Lester pointed out in the course of his argument, if the council’s submission were correct it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys, and so are the subject of discrimination under the 1975 Act.”
Lord Mance went on to say at paragraph 78:
“Direct discrimination can arise in one of two ways: because a decision or action was taken on a ground which was, however worthy or benign the motive, inherently racial within the meaning of section 1(1)(a), or because it was taken or undertaken for a reason which was subjectively racial”
In the Matter of an Application by the Northern Ireland Electricity Service (supra) the question of causation was considered and it was stated at page 285F that:
“A person may discriminate against another on the ground of his own or that other’s or a third party’s religious belief or political opinion or a combination of such beliefs or opinions”
In light of the foregoing authorities, it can be seen that the alleged discriminator’s motive is not determinative of the question of whether or not treatment is on the ground of political opinion; the question is what caused the treatment in question. Indeed, the higher courts have repeatedly recognised that discrimination may be wholly subconscious in nature: see Nagarajan v London Regional Transport (supra) per Lord Nicholls at 885E-H and R (E) v Governing Body of JFS (supra) per Baroness Hale at [64] and Lord Mance at [115].
Relevance Of ECHR
Under S3 and S6 of the Human Rights Act 1998, courts and tribunals are required to read and give effect to statutory provisions in a way which is, so far as possible, compatible with the rights conferred by the ECHR. Art. 9, freedom of thought, conscience and religion, and Art. 10, freedom of expression, are likely engaged in the present case. Both of those rights are qualified rights.
In Sahin v Turkey (App no 44774/98) (2005) 19 BHRC 590, (2005) 44 EHRR 5 the European Court of Human Rights provided clear guidance on the foundational nature of the rights in Art. 9, as well as the basis for limitations that may be placed on those rights. It stated:
“105. … Article 9 does not protect every act motivated or inspired by a religion or belief.
106. In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected. … This follows both from para 2 of art 9 and the State’s positive obligation under art 1 of the Convention to secure to everyone within its jurisdiction the rights and freedoms defined in the Convention.
107. … Accordingly, the role of the authorities in such circumstances is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other …
108. Pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position … Pluralism and democracy must also be based on dialogue and a spirit of compromise necessarily entailing various concessions on the part of individuals or groups of individuals which are justified in order to maintain and promote the ideals and values of a democratic society … Where these “rights and freedoms” are themselves among those guaranteed by the Convention or its Protocols, it must be accepted that the need to protect them may lead states to restrict other rights or freedoms likewise set forth in the Convention. It is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a “democratic society”.“
Reverse Burden of Proof
The reverse burden of proof applies to claims of direct discrimination under FETO, by virtue of Article 38A. The Tribunal is well versed in the proper application of the reverse burden however, for the sale of completeness, the main authorities are set out below.
The English Court of Appeal provided guidance on how to apply the burden of proof in the case of Igen Ltd v Wong [2005] EWCA Civ142. The court pointed to a two-stage test. The claimant must firstly show facts from which the tribunal could, in the absence of an adequate explanation, conclude that the respondent had committed an unlawful act of discrimination. Once the tribunal has so concluded the burden then shifts to the respondent to prove that he did not commit an unlawful act of discrimination.
In the subsequent English Court of Appeal decision of Madarassy v Nomura International PLC [2007] IRLR 246, Lord Justice Mummery said:–
“The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities the respondent had committed an unlawful act of discrimination.Could conclude’ in Section 63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it.”
Lord Justice Mummery went on to say:-
“Section 63(A) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situation with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy. Such evidence from the respondent could, if accepted by the tribunal, be relevant as showing that, contrary to the complainant’s allegations of discrimination, there is nothing in the evidence from which the Tribunal could properly infer a prima facie case of discrimination on the proscribed ground.”
In the case of Laing v Manchester City Council [2006] IRLR 748, Mr Justice Elias said:–
“The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that, even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race”.”
The English authorities have been endorsed by the Northern Ireland Court of Appeal. In the case of Nelson v Newry and Mourne District Council [2009] NICA 24, Lord Justice Girvan referred to Madarassy and said:–
“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”
Constructive Dismissal
Article 127(1)(c) of the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as the ‘1996 Order’) states:
“ For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph 2(2) … only if
The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.
The Four Elements Of The Test For Constructive Dismissal
This is usually referred to as constructive dismissal. In any clam for constructive dismissal there are four essential elements for a Tribunal to consider. Harvey at Division D1 paragraph 403 sets out those conditions as follows:
“There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.
That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving.
He must leave in response to the breach and not for some other, unconnected reason.
He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.”
Contractual or Reasonableness Test?
The test in a constructive dismissal case is a contractual test and not a reasonableness test (Western Excavating (ECC) Ltd v Sharp [1978] 1 ALL ER 713). Therefore, the question is not whether the employer has acted reasonably but rather whether the employer committed a breach of contract that was so went to the heart of the contract and as such can be considered repudiatory.
The Implied Term of Trust and Confidence
”The employer shall not without reasonable and proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.”
It is however submitted that the use of the word “and” in the context of the passage “calculated and likely to destroy..” is an error of transcription. Harvey at Division D1 paragraph 430 cites the case of Baldwin v Brighton and Hove City Council[2007] ICR 680, [2007] IRLR 232 as support for the proposition that the test is satisfied if the actions of an employer are calculated or likely to destroy or seriously damage the relationship of confidence and trust.
Further assistance as to what amounts to a breach of the implied term can be found at paragraph 14 of Lord Steyn’s speech wherein he asserted:
“The conduct must, of course, impinge on the relationship in the sense that, looked at objectively, it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer.”.
The Nature of the Breach
Even if there has been a breach or breaches, that is far from the end of examination. The breaches must be repudiatory in order to allow a Claimant to treat the employment contract as at an end, see Hutchings v Coinseed Ltd [1998] IRLR 190. In fact the breach must on an objective analysis go to the very root of the contract, see Mayer v British Broadcasting Corporation [2004] All ER (D) 34 (Nov), EAT.
In Kaur v Leeds Teaching Hospitals [2018] IRLR 833 at paragraph 75 it was stated:
“In short, I believe that the judge was right to find, as he did at para 25, that what occurred in this case was ‘the following through, in perfectly proper fashion on the face of the papers, of a disciplinary process’. Such a process, properly followed, or its outcome, cannot constitute a repudiatory breach of contract, or contribute to a series of acts which cumulatively constitute such a breach.“
Submissions
The evidence of Ms Devlin is that she watched the “Let Woman Speak” speech on 18th April 2023. This accords with the Claimant’s evidence in that the Claimant was clear that she was speaking to Ms Devlin about the event in the days that followed it. At paragraph 15 the Claimant stated:
“I felt increasingly apprehensive at work in the days that followed, as my social media was inundated with offensive messages. A friend and a colleague both texted to warn me what was happening online before I even got into work (Tab 7). This made me incredibly anxious. I spoke with my colleagues and boss to express my distress. They were supportive at this stage. Michele Devlin printed out some of the tweets ahead of my meeting the PSNI.“
The Claimant also accepted in cross that Ms Devlin was sympathetic when first told about the online harassment that she received. She helped her print out tweets for the PSNI.
Ms Devlin gave evidence that she held her head in her hands when she heard the speech. It is therefore clear something about what she watched caused her concern. It is however submitted that it is important to note that Ms Devlin did not rush to take action.
It is also at this stage important to note Ms Devlin was clear that she was aware of the claimant’s views around transgenderism prior to the left woman speak about. Given that these views appear to be of central importance to the claimant it is unsurprising that her work colleagues would be aware of those views. There is no evidence that at any time in the past there was any suggestion that the claimant would be investigated or disciplined because of her views in this area. Ms Devlin did say that she intended to raise the claimant’s comments at Belfast Exposed and outside a pub at her supervision but that again shows that those types of views were not something that were a cause for any investigation. The panel is therefore entitled to conclude that there was no rush on the part of Ms Devlin to investigate as soon as she saw the LWS speech. It is submitted this would be a fair but important conclusion as it will assist the Tribunal in making a conclusion as to what operated on the mind of Ms Devlin when she decided to initiate an investigation.
The evidence then demonstrates that the issue of the LWS speech was raised at the 4th May 2023 board meeting by a board member, Lucy Baxter. The note at 293 records:
“at this point of the meeting when MD was giving LB an update on the meeting she’d just missed, under A.O.B. LB brought up the issue of SM (Sara Morrison) the BFF Inclusion/ Audience Development Co-ordinator speaking at a controversial “Let Women Speak’! public rally at the Big Fish in the city centre on April 16th. LB stated that several friends had mentioned this to her. It was expressed that the rally was shouty and boorish in its tone, with anti-trans, anti LGBTQI+ sentiment throughout. The input from BFF l&AD Co-ordinator was a criticism of many groups in the women’s sector– the link is still on line, and SM piece can be found at …” [emphasis added]
The next day Ms Devlin emailed the co-chairs. It includes the following:
“I was at a meeting today and Pedro Donald the owner of the Sunflower said to me ‘what is going on with Sara Morrison’ – that a number of people had said to him, “what is the BFF Inclusion Officer doing speaking at a rally with this far right-wing crowd.” He added that the reputation of BFF as a progressive LGBTQ supportive organisation was at risk.” [emphasis added]
On 4th July 2023 Ms Devlin emailed the co-chairs about the 3rd July 2023 email. I shall return to that email below. In the 4th July 2023 email Ms Devlin indicates that:
“We have had a few positive emails back. And we have had 2 others which I will forward to you separately. We have also had some tweets from Queerspace – which I will send to you FYI.“
That Ms Devlin would raise this matter immediately with the co-chairs demonstrates that by that time the respondent was treating the issue seriously.
The response to the 3 July 2023 email from Outburst Arts: It is clear from this that the in the eyes of that organisation the manner in which the claimant had manifested her political opinion was divisive and lead them to not want to work with the claimant. The email stated that it “feels deeply inappropriate” to receive an email that the claimant is copied into.
The Queerspace response: The Tribunal would be entitled to infer that that email again flags up an unwillingness to work with the Claimant and as a consequence, damage to the Respondent both in terms of its reputation and its ability to deliver work with partner organisations.
The reply to the 3 July 2023 email from Sarah Williams: Again it is clear she does not want to work with the Festival.
In addition to the above matters, the Tribunal would be entitled to conclude that emails from Mark Cousins were operating on Ms Devlins mind when she decided to have an investigation. At 303 the email from Mr Cousins of 25 May makes clear that he has an issue with the organiser of the LWS event. He also states the Respondent can’t control the thoughts of staff. This shows it is the manner that the claimant manifested her views that was of concern and not the views themselves.
It is also clear from the 25 June email from Mr Cousins… that there were concerns about the conduct of the claimant at a work event.
The rationale behind the investigation can also be discerned from the Invite letter. It states:
“Concerns have therefore alleged that Sara’s involvement in such an event is contrary to the following specific areas of the role of Inclusion/ Audience Development Co-Ordinator in Belfast Film Festival, namely:
The purpose of the role, to contribute towards BFF’s overall Audience Development goals, in delivering events to engage local communities in a range of film activities in their localities, year-round and during the two annual Festivals; working with partner organisations, community leaders, community participants and young people prior to and during events, to encourage their participation and attendance.
A responsibility to maintain current relationships and build positive new relationships with BFF’s audience, participants and stakeholders.
The allegations are related to the actions and behaviours of Sara Morrison, Inclusion / Audience Development Co-Ordinator in carrying out her role and any potential damage to BFF’s reputation as an inclusive organisation and Service Provider.” [Emphasis added]
It is of note that there is no specific reference to gender critical views. Ms Devlin was clear that it was the impact on the organisation as a consequence of how the claimant manifested her views that was rationale for the investigation. In particular she was concerned about the criticism of partner organisations.
The Respondent has properly accepted that a belief that biological sex is materially real and not be conflated with self-identified gender is a relevant political opinion. However, there is a further issue as to whether or not the extracts of the Claimant’s speech that caused the Respondent concern, that being criticism of woman’s groups for being a ‘racket’, is a political opinion. If it is not then the entire discrimination case must fail.
During the course of the hearing the claimant has advanced a case that the 3rd July email was sent as a means of eliciting complaints in order to justify an investigation. The Claimant suggests that this plan was concocted during a meeting on 28 June. There is no evidence at all that supports such a conspiracy theory. A number of points are of note:On any analysis there was already sufficient grounds to investigate in light of the Mark Cousins and Lucy Baxter concerns;If there was a conspiracy of this sort one would expect the protagonists to have ensured there stories match.
Ms McGiven, Ms Barros D’sa and Ms Devlin all have varying degrees of recollection of what on Ms Barros D’Sa’s evidence was clearly a telephone call and not a meeting. Ms Barros D’Sa was in London at the time and hadn’t returned to NI. The differing nature of their recollections is indicative of the them each truthfully attempting to recall a telephone call that wasn’t particularly remarkable. A call wherein they had agreed to set up the claimant in order to dismiss her would be very remarkable and memorable;
It is not credible that the Respondent would apply to BCC for a licence for an event that was at all times a ruse and would never go ahead.
It is also important to consider that if the Respondent was seeking to find a reason to investigate the claimant then one landed in their lap with the Claimant’s complaint. That was a complaint of targeted harassment on the part of the Claimant at a work event… That complaint arrived on 7 July 2023. At that point, the decision to investigate had been taken, but it had not been communicated to the claimant. If the respondent was truly at its work, in the manner that the 3rd July email conspiracy suggests, they would simply have changed the reason for investigation to the Claimant’s complaint. They didn’t.
It is also of note that the claimant, in the manner in which she manifested her beliefs, was prima facie in breach of contract. She was clearly a steward at the LWS event. That would be a breach of her contract as she had not sought permission. That alone merited investigation.
In respect of the initiation of the investigation, it is important that the Tribunal considers who made that decision and their mental processes. Whilst the board were supportive of an application it is clear that it was an operational decision and would have been a matter for Ms Devlin. Even if it was a joint decision by Ms Devlin, Ms Barros D’Sa and Ms McGivern it is clear from the evidence of all that it was the comments about woman’s groups and the damage to the respondent that caused them to agree to or be supportive of an investigation. The decision to investigate was not therefore an act of discrimination.
In relation to the case of discrimination, it is important that the Tribunal engages with each allegation of discrimination separately. I will therefore briefly deal with each.
Mark Cousins’ email of 25 June to Michele Devlin and various of the Respondent’s Board members urging action against the Claimant;
It was clear from the evidence of Mr Cousins that he had no discriminatory motives operating on his mind. The Claimant has not proved facts to pass the burden but even if she had, in light of the foregoing, this particular of discrimination must fail.
The Respondent posting on X/Twitter on 4th July 2023 an announcement that there had been an incident, the Respondent was “currently reviewing concerns raised relating to diversity matters.”
It is clear that it was the complaints being received and the potential for damage to the reputation to the Respondent that caused the tweet to be issued. Whilst the Claimant now seeks to take issue with the wording of the tweet it is highly significant that she agreed a tweet needed to be issued and actually worked on the wording of it.
Michele Devlin’ s email of 7 July 2023 to Outburst Arts
It is clear from the evidence that Ms Devlin was motivated by a need to protect the reputation of the respondent. So whilst the Claimant has not proved facts to pass the burden but even if she had, in light of the foregoing, this particular of discrimination must fail.
Engaging directly with individuals who Claimant states were harassing her.
There is no evidence that the Respondent engaged with anyone in order to subject the claimant to harassment or less favourable treatment.
Initiating an investigation into alleged misconduct relating to Claimant’s attendance/speaking at Let Women Speak rally
This is dealt with in detail above save the issue of engaging an outside HR company. That was clearly intended to provide assistance and expertise to Ms Barros D’Sa and Ms McGivern who both gave evidence about their lack of HR knowledge. This cannot be an act of discrimination. Furthermore, a no stage was there any reference to misconduct.
Causing or permitting the disciplinary investigation to be conducted in a biased and hostile manner.
No disciplinary investigation ever took place. This particular of discrimination must fail.
Putting the Claimant on SSP
The Claimant’s contract of employment provided that she only receive SSP. Whilst she had previously received full pay when on sick leave, Ms Devlin give clear and credible evidence that this was because that leave occured during the COVID-19 pandemic and the normal rules were suspended. Given the extraordinary nature of the pandemic the tribunal is entitled to conclude that this evidence is correct and therefore paying the claimant for contractual entitlement cannot be an act of less favourable treatment.
Failing to refer the Claimant to Occupational Health
The Tribunal can conclude that the respondent is a small organisation. Whilst larger organisations may have clear policies around referring to OH the industrial jury is entitled to take note of the fact that smaller organisations tend not to have such policies. When standing back and focusing on the evidence as a whole, it is clear that not referring the Claimant to OH until December 2023 was not an act of discrimination. The Claimant has not proved facts to pass the burden but even if she had, in light of the foregoing, this particular of discrimination must fail.
Failing to ensure a fair, independent and impartial process for hearing the Claimant’s grievance
The evidence of KP was clear and persuasive. There was no discriminatory motives influencing the conduct of the grievance. The claimant accepted the process was thorough and not a whitewash. The Claimant has not proved facts to pass the burden but even if she had, in light of the foregoing, this particular of discrimination must fail.
Removing the Claimant from the Belfast Film Festival programme for November 2023 on 12th October 2023
The evidence of Ms Devlin is that the Claimant was not included as she was off sick and hadn’t worked on the event. That is a clear and credible non discriminatory reason. The Claimant has not proved facts to pass the burden but even if she had, in light of the foregoing, this particular of discrimination must fail.
Denying the Claimant access to her laptop, her email, shared drive and calendar
The claimant’s laptop was being repaired having been left in by repair by her. The Respondent did not deny her access. There is no evidence of any decision making relating to the laptop motivated by political opinion.
The issue of the shared drive and the calender were not pursued in cross examination of Ms Devlin. Ms Devlin stated in her statement:
“In relation to the shared Google Drive, same is expensive and we can only have so many users at one time. It is standard practice to pause/remove users during dormant periods of use and re-add them when access is required again.“
That is clearly a non-discriminatory reason.
In relation to the email Ms Devlin admits she made a foolish error in sending the password to the Claimant’s work email. A new password was sent in November. There is no evidence that Ms Devlin was seeking to restrict access for discriminatory reasons. The Claimant was also off sick and so didn’t have any need to access emails which undermines the suggestion that Ms Devlin would seek to restrict access for a discriminatory reason.
The Claimant has not proved facts to pass the burden but even if she had, in light of the foregoing, this particular of discrimination must fail.
Denying the Claimant access her keys
The evidence of Ms Devlin is that she needed the keys for an event. The Claiamt was on long term sick. She had no need for her keys. There is no evidence of any decision making relating to the laptop motivated by political opinion. The Claimant has not proved facts to pass the burden but even if she had, in light of the foregoing, this particular of discrimination must fail.
Constructive Dismissal
The Claimant accepted both the grievance and grievance appeal were thorough. They were not a whitewash. There is no suggestion that either the grievance or appeal failed to consider relevant evidence or question a relevant witness. Ms Owens’ evidence was not challenged. In short there was a grievance process properly conducted. In light of the decision in Kaur, the claim of constructive dismissal must fail as the last straw that caused the claimant to resign was the appeal outcome. Nothing about that appeal or its outcome constitutes a last straw.
Remedy
- If the Claimant does succeed in her claim, which the Respondent does not accept she should, the Schedule Of Loss is not accepted.
- There is no basis to award aggravated damages. See McConnell v PANI [1997] NI 244.
- The claim for family support is a duplication of the compensatory award claimed. Family support was necessitated by the loss of earnings that is compensated by the compensatory award. Awarding damages under the separate head of family support would be a duplication.
- It is not accepted that the present case should attract injury to feelings compensation at the level sought. It is clear that most significant factor causing injury to the claimant’s feelings was the responses to her speech by various online accounts. The Claimant had for example already gone off sick before she was informed there would be an investigation. The respondent bears no liability for anything tweeted or posted by such accounts. Furthermore, the Claimant has presented no medical evidence whatsoever that would help substantiate an award at the level claimed.
ENDS
At the end of yesterday’s hearing the judge told the court the panel’s decision would not be handed down until after Christmas.
Comments are moderated. Please keep it interesting and informative rather than abusive and defamatory. If you would like to support my work with a one-off donation and receive the Gender Blog newsletter in your email inbox you can sign up here. Your email address will be stored securely and confidentially, never given to a third party and will only be used to inform you about things I think are interesting.
Leave a Reply